The Week in Torts – Cases from the Week of September 7, 2018

FLORIDA LAW WEEKLY
VOLUME 43, NUMBER 36
CASES FROM THE WEEK OF SEPTEMBER 7, 2018

SUPREME COURT REVERSES DISMISSAL OF A MEDICAL MALPRACTICE CLAIM IN PRESUIT, FINDING EXPERT’S AFFIDAVIT CONTAINED SUFFICIENT QUALIFICATIONS AND FURTHER FINDING THAT CLAIMS SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO COMPLY WITH DISCOVERY, BECAUSE RECORD SHOWED NO PREJUDICE SUFFERED BY DEFENDANT.

Morris v. Muniz, 43 Fla. L. Weekly S342 (Fla. September 6, 2018):

A 20-year-old woman died a tragic death after giving birth to a stillborn child. She had begun treating with the defendant physicians for her pregnancy in October of 2008. By December, she had lost 26 pounds with the pregnancy, and had visited the practice multiple times with various complaints. 12 days later, the decedent had lost a total of 36 pounds, and several weeks after that, continued to go to the medical practice complaining of mouth sores and blisters, vomiting, dizziness, inability to eat, walk or go to the bathroom, as well as hallucinations.

She delivered a stillborn baby on January 21^st and died three days later on January 24^th after collapsing. The autopsy revealed that she had died from pneumoniae septicemia along with contributing causes of intrauterine fetal demise and severe acute diarrhea.

Before filing the complaint for medical malpractice, the personal representative provided a notice of intent accompanied by an expert opinion of a physician who had been a board certified OB/GYN since 1984. Over her 30 year career, the doctor had delivered more than 14,000 babies, had been chief of the OB/GYN department at a large medical center, chief of staff at a small women’s specialty hospital and member of a hospital wide peer review committee. According to her affidavit, the doctor had also received her J.D. in 2007 and a Master’s in Public Affairs in 2008. She had sworn that she was engaged in full time patient care until March of 2008.

The defendants disputed the expert’s qualifications, wondering how she could be in law school and a full time practitioner, and sought additional discovery regarding the transcripts, records of deliveries of babies, etc.

The defendants moved to dismiss, arguing that the doctor was not a qualified expert under section 766.102(5)(a)2, which requires an expert in medical malpractice cases to devote professional time during the three years immediately preceding the date of the occurrence in the action, and further argued the case should be dismissed because the plaintiff had failed to provide the defendants with the additional information they requested during the informal presuit discovery process.

The trial court granted defendants’ motion to dismiss and the First District affirmed.

The Florida Supreme Court, however, reversed. The court noted an increasingly “disturbing trend of prospective defendants attempting to use the [Chapter 766] statutory requirements as a sword against plaintiffs.” It also reminded us that the requirements of the presuit process must be interpreted liberally so as not to unduly restrict a Florida citizen’s constitutionally-guaranteed access to the courts.

The court addressed two issues: (1) the proper standard of review of a dismissal of a medical malpractice action based on the trial court’s determination that the plaintiff’s presuit medical expert is not qualified to provide medical expert opinion; and (2) whether a finding of prejudice must be made before the trial court can dismiss a medical malpractice action as a sanction, for the plaintiff’s failure to comply with the informal presuit discovery process.

As to the first issue, the court determined the standard of review is de novo. Determining whether a presuit expert witness affidavit is qualified under the statute involves reviewing the expert’s stated qualifications, and then comparing those with what is required under the statute. As such, a trial court is in no better position than an appellate court to conduct the analysis, which is consistent with the well-established principle that pure questions of law are reviewed de novo.

Upon de novo review, the court found that the physician was certainly qualified, both in time of practice, and in giving expert opinion on medical support staff such as nurses, nurse practitioners and physician assistants based on her lengthy experience. Additionally, the presuit expert affidavit is simply there to confirm that the claim was preceded by a reasonable investigation, and does not have to be an opinion which delineates how the defendants were negligent.

On the second issue, because plaintiff’s counsel had objected during the expert’s deposition and the trial court found had “thwarted” the defendants from learning information about things like whether the doctor was aware of ABA accreditation rules restricting students to working no more than 20 hours a week while attending law school, etc., the court found that the doctor’s affidavit clearly demonstrated she was qualified. Further, the defendant presented no evidence to refute those qualifications. As such, the trial court should have never permitted the deposition of the doctor in the first place.

Additionally, the court found the trial court abused its discretion in dismissing the claim without finding that the plaintiff’s actions prejudiced the defendants. The doctor’s opinion had never changed from the time that her opinion was filed, and thus the defendants had all the information they needed to facilitate evaluation of the claim. Also, any attempt to argue that defendants were prejudiced because of the plaintiff’s actions delaying the resolution of the claim is not the type of prejudice contemplated by the law.

THE DEFENDANT INSURANCE COMPANY’S REGISTRATION TO DO BUSINESS IN FLORIDA AND THE DESIGNATION OF A REGISTERED AGENT FOR SERVICE OF PROCESS WAS INSUFFICIENT WITHOUT MORE TO ESTABLISH PERSONAL JURISDICTION IN FLORIDA.

Woodruff-Sawyer & Co. v. Ghilotti, 43 Fla. L. Weekly D1996 (Fla. 3^rd DCA August 29, 2018):

Section 48.091, Florida Statutes requires every formed corporation qualified to transact business in Florida to designate a registered agent for service of process. That alone, however, is not enough to confer personal jurisdiction. That is not the kind of “non-isolated” activity which is required for personal jurisdiction. Additionally, the due process standard for the exercise of general jurisdiction is even more exacting and could not be met in this case either.

While the plaintiff alleged that the defendant was subject to long arm jurisdiction for committing a tortious act in Florida and for breaching an agreement in Florida, and while a tortious act may be committed in Florida without a defendant’s physical presence, there must still be the existence of a causal connection between the defendant’s activities in Florida and the plaintiff’s cause of action.

In this case, the defendant filed an unrebutted affidavit showing that all activities and communications related to procuring the subject policies at issue were done in California. As such, there was no personal jurisdiction over the defendants.

WHERE CASE INVOLVES A FIRST PARTY BAD FAITH CLAIM ALLEGING THE INSURER IS LIABLE FOR AMOUNT IN EXCESS OF POLICY LIMITS, THE TRIAL COURT CANNOT ENTER JUDGMENT OVER THE POLICY LIMITS, PENDING RESOLUTION OF THE BAD FAITH CASE AND AWARDING ATTORNEY’S FEES. COURT ADDITIONALLY SUGGESTED THAT ENTITLEMENT TO FEES BE LITIGATED AFTER RESOLUTION OF THE BAD FAITH CLAIM.

21^st Century Centennial Insurance Co. v. Walker, 43 Fla. L. Weekly D2000 (Fla. 4^th DCA August 29, 2018):

The plaintiff sued the insurance company seeking damages under a UM policy with short limits. After getting an excess verdict, the plaintiff later moved to amend his complaint to add counts for bad faith.

Before trial, the plaintiff served two proposals for settlement where he proposed to settle for more than the policy limits. The plaintiff beat both proposals.

After remand of the case back to the trial court after the appeal, the parties agreed to an entry of a final judgment awarding attorney’s fees of $200,000, as well as expert witness fees of $6,050.

The court reminded us of the Florida Supreme Court’s decision in Fridman, establishing the appropriate protocol to follow if a plaintiff prevails in a UM action and then elects to pursue a bad faith claim. Any judgment entered should be for the full amount of the insured’s damages, even though the insured must later proceed with a bad faith action in order to recover any amount in excess of the policy limits.

The court also endorsed the “preferable approach,” of entering final judgment in these cases for the full amount of the verdict while limiting execution of the judgment to the policy amount.

When a case involves first party bad faith, the insurer is liable for an amount in excess of the policy limits–including an award of attorney’s fees and costs based on section 768.79–but that too should not be considered by the trial court until the bad faith litigation is resolved.

Then the Fourth District gratuitously suggested that Fridman compelled it to adopt another “preferable approach” in the context of first party bad faith cases, i.e., that parties should wait until the determination is made on whether the plaintiff proved bad faith claims before even determining entitlement to an award of attorney’s fees and costs against an insurer seems to go against other law which states that attorney’s fees may be litigated independent of the merits.

TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW BY BLENDING STANDARD NEGLIGENCE AND STATUTORY REQUIREMENTS APPLICABLE TO NURSING HOMES IN EVALUATING PUNITIVE DAMAGE CLAIM INSTEAD OF GROSS NEGLIGENCE STANDARD–THE NONPROFIT CORPORATION OPERATING THE FACILITY WAS NOT SUBJECT TO STATUTES GOVERNING NURSING HOMES, AND THUS CERTIORARI REVIEW WAS PROPER.

Brevard Achievement Center v. Camp, 43 Fla. L. Weekly D2022 (Fla. 5^th DCA August 31, 2018):

A nonprofit corporation defendant was operating a facility providing services to persons with developmental disabilities. Plaintiff asserted that the defendant failed to protect one of its patients from sexual abuse that occurred on its premises. Plaintiff sought to amend the complaint to include a claim for punitive damages.

The applicable statutes that govern the legal standard with which to assess a claim for punitive damages based on the abuse of the developmentally disabled, found in Chapter 393 does not provide for punitive damages. Thus, judicial precedent holding that gross negligence is the standard is what controls.

In this case, instead of applying the gross negligence standard, the trial court blended standard negligence and the statutory requirements applicable to nursing homes in Chapter 400 to rule that the defendant’s employees engaged in conduct to create a foreseeable zone of risk.

Because the court did not apply the proper standard required to support a claim for punitive damages, the trial court departed from the essential requirements of law by applying this erroneous blended standard.

TRIAL COURT ABUSED DISCRETION IN DENYING DEFENDANT’S MOTION FOR RELIEF FROM DEFAULT JUDGMENT WHERE DEFENDANT’S ATTORNEY WITHDREW, AND HIS MOTION TO WITHDRAW AND NOTICE OF HEARING WERE NOT TIMELY SERVED ON THE DEFENDANT AT THE DEFENDANT’S LAST KNOWN ADDRESS AS REQUIRED BY THE RULES OF JUDICIAL ADMINISTRATION.

Agape Charter School v. Summit Charter School, 43 Fla. L. Weekly D2023 (Fla. 5^th DCA August 31, 2018).

SUMMARY JUDGMENT PROPERLY GRANTED AGAINST PLAINTIFF WHO TOOK A SHORTCUT AND FELL IN A PLANTER SQUARE WHICH WAS NOT A DANGEROUS CONDITION AS A MATTER OF LAW.

Trugreen Landcare v. Lacapra, 43 Fla. L. Weekly D2027 (Fla. 5^th DCA August 31, 2018):

The plaintiff tripped and injured himself after losing his footing while cutting across a palm tree planter square in front of a movie theater. He sued the landscape company for negligently maintaining landscaping and failing to inspect the planter square.

A jury found in favor of the plaintiff, but charged him with 50% responsibility and awarded $400,000 in total damages. The defendant appealed the trial judge’s denial of its motion for directed verdict.

A motion for directed verdict should be granted when there is no reasonable evidence upon which a jury can legally predicate a verdict in favor of the non-moving party. The court must evaluate the testimony in a light most favorable to the plaintiff and every reasonable inference deduced from the evidence must be indulged in a plaintiff’s favor.

The open and obvious danger doctrine provides that an owner or possessor of land is not liable for injuries to an invitee caused by a dangerous condition on the premises when the danger is known or obvious to the injured party, unless the owner or possessor should anticipate the harm despite the fact that the dangerous condition is open and obvious. The doctrine rests upon the generally accepted notion that owners and possessors of real property should be legally permitted to assume that those entering their premises will perceive conditions that are open and obvious to them upon the use of their senses. In analyzing whether a danger is open and obvious, the courts are required to consider all of the facts and circumstances surrounding the accident and the alleged dangerous condition.

Owners or occupiers of real property owe two duties to business invitees: (1) a duty to use ordinary care in keeping the premises in a reasonably safe condition; and (2) a duty to warn of latent and concealed hazards that the owner/occupier should know or did know about.

While the open and obvious danger doctrine may discharge a duty to warn, it does not apply when negligence is predicated upon a breach of the duty to maintain the premises in a reasonably safe condition. Thus an issue of fact for the jury exists when the plaintiff alleges the owner/occupier has breached the duty to keep the premises in a reasonably safe condition regardless of whether the danger was open and obvious.

However, the court went on to say that some conditions are considered so open and obvious that they cannot be inherently dangerous, and cannot as a matter of law support liability for the breach of the duty to maintain the premises in a reasonably safe condition. Additionally, there is no duty to make areas that are not designed for walking reasonably safe for that purpose, or to warn that they are not safe for walking.

In this case, the plaintiff testified he lost his footing due to a hidden depression in the palm tree planter square. Palm tree planters are not inherently dangerous and was an open and obvious danger.

Also, there was no evidence of continuous and obvious use of the planter square as a pedestrian shortcut in this case and therefore no need for a shortcut path, because the planter square was surrounded by a sidewalk on all sides. Judgment for the plaintiff was reversed and remanded for judgment in favor of the defendant.